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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45322
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was working, in the UK, under a Consulting Contract where

Resolved Question:

I was working, in the UK, under a Consulting Contract where it stated, “Day means a period of 8 hours whether worked consecutively or not", and “Fees - £550 per Day (exclusive of VAT).”

I was forced to work for an average of 10 hours a day but only ever invoiced for 8 hours...as the the carrot of a full time role was dangled before me and I knew the Company was short of cash at that time...in response to which I agreed to work at a daily rate of less then 50% of my normal rate.

I was central to the company's efforts to secure funding, and the funding was secured on the basis that I was in place (as a highly experienced Professional with an excellent track record and a great reputation).

However within hours of that funding being secured they terminated my contract...and with it the in principal offer of the full time role.

I have evidence that another Contractor was allowed to take time time off in lieu for working over 8 hours a day...although because of my role, and the deficiencies of the rest of the Management Team, I did not have this option.

The Company has refused to pay the average of 2 hours a day over the 8 hours that I worked for 3.5 months, but did pay a later invoice where which included all the hours I worked.

Is my Claim well based in Employment / Contract law?

Regards

Chris
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. When you say you were forced to do these hours how did that happen? Did you not voluntarily do them?
Ben Jones : jsut to let you know I am in tribunal today so won't be able to respond fully until later this afternoon, thanks in advance
Customer:

Hi Ben, when I say forced, I did do them voluntarily but I had little choice as my role was "Head of Delivery" and I in charge of the development team and 10 projects...all on my own...inc. overseas projects. The Company was on the brink of failure and as I had a vested interest given the carrot of the full time role I just got on with it to keep all the balls juggling. I also had little / no choice because I was increasingly doing work that the other Management Team Members / Founders were supposed to do...but could not or would not. I was more often than not left there when the rest of the Management Team cleared off home...everybody knew the hours that I was working. Catch up later. I have a bit of legal experience and have drafted a Witness Statement for the Claim...I could sent that to you? It cover all the circumstances. Regards Chris

Ben Jones :

Many thanks for your patience. Whilst I understand your position and the redress you seek, that may not necessarily be easy here and I will explain why below.


 


You did have a contract which specifically stated that a day was 8 hours of work and that you were paid for that amount of work. However, you did agree to work an extra couple of hours a day without raising this as an issue with the employer and without agreeing in any way that you would be compensated for that time. You also continued to invoice them only for the 8 hours and again did not bring up this issue at the time. From a legal point of view, this could easily amount to an implied acceptance of the varied terms, where you had agreed to work the extra time to discharge your duties under the contract and for no additional remuneration. Your actions simply did not imply that you had refused to do the extra hours or that you were expecting any payment for them – quite to the contrary, your actions implied an acceptance that you would work an extra 2 hours without challenging the employer and the fact you continued to invoice them only for the base hours shows that at the time you were not concerned about this (behind the scenes you may have personally been unhappy about this but the key is to make the employer aware of this and not imply your acceptance top the varied terms).


 


So this is the main issue I foresee in this situation - if I was advising the employer I would certainly concentrated on these facts and make it very clear to the court that there was nothing that suggested you were unhappy with the hours you did or the lack of pay for these extra hours and you only decided to challenge this right at the end when your contract was terminated. An early challenge would have been quite important in the circumstances in order to fight the argument that you had implied your acceptance to the terms as they stood.

Customer:

Hi Ben, thanks. I understand that argument. Will the Court not consider that I did not make representations about this at the time because of good-will (related to the offer of a permanent role....which they knew was my need / desire) which was in no way reciprocated...and that the Company has benefited massively from my so far unpaid efforts whilst I was simply sacked as soon as funding was finalized? Stated another way Can the Law of Equity be of any assistance here if the Contract issue is insurmountable?

Customer:

Hi Ben, thanks for that. I understand the issue / argument. Can it not be argued that I only agreed to undertake these extra hours as good-will related to my need / desire for the permanent role, and that the Respondent did not act reciprocally in good-faith? Stated another way, can I not argue that these hours were worked in lieu of the benefits of the expected (an expectation which they did NOTHING to disabuse me of...quite the opposite) full time role. Also, is there not a case which can be made out in Equity, i.e. with my (so far) unpaid work allowing the company to secure $5mn of investment which would otherwise not have been possible? It just seems so inequitable / unfair...especially after having agreed to work for a fraction of my normal rate, and having been "bled-dry". C

Ben Jones :

The law f equity is an argument but quite an uncertain one because you are relying on the personal opinion of the Judge to determine whether equity should be applied in this case or not. As you can imagine that could vary considerably on the day based on who is hearing the case. The issue here would still be mainly oner of contract - for example they may have promised you a permanent job but was this a firm and formal promise or just a 'we will see what we can do' kind of promise. So whilst you do have an argument I would not go as far as saying you have a strong case which you can rely on to definitely make a claim and know that the chances of winning are reasonably high - there is still a great deal of uncertainty in this case...however the risks associated with claiming would also depend on how much you are claiming, what is the total amount you would pursue them for?

Customer:

Hi Ben, I am claiming only about £9.5K (or 1 / 300th of the amount they raised in funding before they sacked me), and doing all the legal work myself. C

Ben Jones :

ok so the risks are not enormous because if you keep this under the £10k mark you will go to the small claims court and would only have to pay the court fees - so if you lose you will not have to pay the other side's legal fees and if you do the work yourself you will also not have legal fees to pay yourself

Customer:

Hi Ben, I also possess evidence that the Co-Founders made material misrepresentations to the Investors...and have put this in the Witness Statement...so some leverage there me thinks.

Ben Jones :

is that directly linked to your claim?

Customer:

I have just added it as background as it was as a result of raising various concerns about the Companies operations / conduct that I was sacked.

Customer:

I also know they allowed another Contractor (one that I hired) TOIL...is it not discrimination not to treat me the same?

Ben Jones :

no this is not discrimination, they can treat different employees differently, it would only be discriminatory if you are being treated differently due to a protected characteristic, such as gender, race, age, religion, etc

Customer:

I see. Thanks. So Small Claims it is. Do I simply state that my Claim is also made in Equity, or do I need to be more specific about that?

Ben Jones :

you can state that but do not get too concerned with complex legal arguments - the small claims court is not the venue for that - you need to state how the losses you are claiming arised and why you believe you should be entitled to them, the rest is really discussed on the day between the parties and the Judge

Customer:

Thanks Ben, very good stuff. Happy to pay now. Take care.

Ben Jones :

Many thanks and all the best

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45322
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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